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ELRCDismissedPetition (Mombasa ELRC, filed 4 May 2022)· [2023] KEELRC 3456 (KLR)

Nayweni & 45 others v African Shipping Limited & 47 others; International Transport Federation & 4 others (Interested Party) (Petition E007 of 2022) [2023] KEELRC 3456 (KLR)

Employment and Labour Relations Court
7 December 2023
MMM. Mbarũ
2,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed Mombasa stevedores' petition because they sued the wrong parties and should have filed a standard employment claim instead.

What this practically means

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Executive summary

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The 47 petitioners, stevedores working at the Port of Mombasa, filed a constitutional petition on 4 May 2022 against 47 respondents, comprising shipping lines, importers/exporters, the Kenya Ships Contractors Association, state corporations and government offices. Their complaint was that members of the association who contracted their services failed to open and remit to NHIF and NSSF accounts as required by law, with some petitioners allegedly engaged for over 30 years. The petitioners did not attend court on the dates fixed for directions and submissions, and no submissions were filed on their behalf. All respondents submitted that there was no employment relationship with the petitioners, who pleaded engagement by independent contractors, depriving the court of jurisdiction under Section 12 of the ELRC Act; further, the petition offended constitutional avoidance and the Anarita Karimi Njeru standard of specificity. The court framed a single issue: whether this was a proper petition. It held that the petitioners' pleaded employer was GEOWAVE, a member of the contractors' association, which was never joined; without an employment relationship the court lacked jurisdiction. Citing County Government of Garissa, Gabriel Mutava and Lugo, the court applied constitutional avoidance, holding that employment grievances, including statutory remittances, should be pursued by Memorandum of Claim under the Employment Act and Rule 7(3) of the Court Rules. The petition was declared not a proper petition and dismissed, with costs to the respondents due to the petitioners' absence.

Key legal issues

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01

Whether the petition is a proper petition before the ELRC

Holding

It is not a proper petition: no employment relationship with the respondents is pleaded, jurisdiction is absent, and constitutional avoidance required the alternative route of a Memorandum of Claim

Reasoning

The petitioners pleaded employment with members of the Kenya Ships Contractors Association, notably GEOWAVE, none of whom were joined. Jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act depends on an employment relationship. Remedies for NSSF/NHIF remittances are available under the Employment Act through a Memorandum of Claim, and Rule 7(3) permits rights enforcement in a statement of claim, so the constitutional route was unnecessary.

p. 5
02

Applicability of constitutional avoidance

Holding

The doctrine applies; employment grievances should first be pursued under the Employment Act and Court Rules

Reasoning

The court adopted the principle that a court should decline to determine a constitutional issue where another mechanism exists, citing KKB v SCM and Lugo v Director of Public Prosecutions. Rule 7(3) allows rights enforcement in a statement of claim, so a petition was unnecessary.

p. 5

Legal principles established

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  • Where a dispute can be resolved without reaching a constitutional issue, the court should follow that course (constitutional avoidance)
  • The ELRC's jurisdiction depends on an employment relationship; without one the court lacks jurisdiction

Court orders

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  1. 1.The petition is found not to be a proper petition and is dismissed for want of jurisdiction
  2. 2.The petitioners shall meet costs due to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a); Articles 152 and 156
  • Employment and Labour Relations Court ActSections 3 and 12
  • Employment ActSection 2; Sections 10(6) and (7)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2013General requirements
  • Kenya Ports Authority ActNot specified
  • Kenya Maritime Authority ActNot specified

Cases cited (11)

  • Housing Finance Co. of Kenya Limited v Gilbert Kibe Njuguna
    HCCC No. 1601 of 1999
  • Aliela Kenton College Trust & Another
    Petition E084 of 2022
  • KKB v SCM & 5 others
    Petition E014 of 2020
  • Anarita Karimi Njeru v Attorney General
    [1979] eKLR
  • Humphrey Mutegi Burini & 9 others v Chief of the Kenya Defence Forces & another
    [2017] eKLR
  • Stanley Mukei v National Oil Co.
  • Public Service Commission v Cheruiyot & others
    Civil Appeal Nos. 119 and 113 of 2017
  • Kenya Union of Commercial Food and Allied Workers v Mwana Black Smith Limited
    [2013] eKLR
  • County Government of Garissa & another v Idriss Aden Mukhtar & 2 others
    [2020] eKLR
  • Gabriel Mutava & 2 others v Managing Director, Kenya Ports Authority & another
    [2016] eKLR
  • Lugo v Director of Public Prosecutions
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution read with Sections 3 and 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nayweni & 45 others v African Shipping Limited & 47 others; International Transport Federation & 4 others (Interested Party) (Petition E007 of 2022) [2023] KEELRC 3456 (KLR)", Case Analysis (2023). Petition (Mombasa ELRC, filed 4 May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3456/eng@2023-12-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.